Recently, there has been an increase in the number of claims under Title III of the Americans with Disabilities Act (ADA) regarding the accessibility of websites. Of those claims, many of the potential plaintiffs are specifically targeting banks and other financial institutions, alleging that their websites are not accessible to individuals with disabilities.
Title III of the ADA covers public accommodations and commercial facilities and provides, in pertinent part: “[n]o individual shall be discriminated against on the basis of a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” The regulations set forth categories of entities that qualify as public accommodations, which specifically include banks as “service establishments.” Thus, the accommodation requirements of Title III apply to at least the physical location of a bank or similar financial institution.
At issue in the recent influx of claims is the extent to which a bank’s website must accommodate disabled patrons. The Department of Justice (DOJ), which enforces Title III of the ADA, has not yet issued regulations, accessibility requirements or guidance relating to whether and how commercial websites can comply with Title III. The DOJ previously planned to issue regulations interpreting Title III in the spring of 2016 but announced late last year that it would not finalize the regulations until 2018 at the earliest. The DOJ stated that it first wanted to focus on similar regulations for entities covered by Title II of the ADA, which applies to government entities and federal contractors.
In the meantime, the DOJ has taken the view, at least as it would apply to state and local governments, that such entities must make their websites accessible to consumers with disabilities. The DOJ has previously explained that “. . . [t]he Internet plays a critical role in the daily personal, professional, civic, and business life of Americans. The ADA’s expansive nondiscrimination mandate reaches goods and services provided by public accommodations and public entities using Internet websites.”
Despite not having clear regulatory or case law on the specific issue, it is important for banks and other financial institutions to be aware of this issue and to consult with legal counsel on assessing compliance and risk. If you receive a settlement demand from a plaintiff’s law firm, we urge you to contact your legal counsel to determine the best course of action for your institution.